Insolvenzverwalterhaftung als Sanierungshindernis

The (temporary) continuation of an insolvent business is the ‘cornerstone’ of any restructuring. However, temporary insolvency administrators are confronted with disproportionate liability risks when continuing a business. The scale of liability is characterised by indeterminate legal terms and, due to the scarcity of casuistry, can hardly be assessed from a practitioner’s point of view. The prevailing doctrine interprets the administrators’ duties at the expense of effective, reorganisation-oriented business continuation, which motivates defensive actions by the administrators and significantly reduces the chances of reorganisation. In this study, the author points out that if appropriate weighting is given to the objectives of the insolvency proceedings, the legislative intention and the legal system, a liability rule that promotes restructuring must be applied. As a result, the author summarises this optimised standard in clear criteria that can be applied in practice.